2.1 The Position of Constitutional Rights and the Rule of Law in the Constitution
2.1.1 The Constitution does not provide a coherent catalogue of human rights, rather must be understood in its evolutionary context. The Austrian system of human rights consists of a variety of catalogues and constitutional provisions enacted nationally and internationally over the last 150 years. The main parts consist of the following. First, the State Basic Law on the protection of the rights of citizens from 1867 contains traditional civil liberties and builds the classic catalogue of fundamental rights in Austria, which was adopted into the democratic Constitution in 1920.Footnote 50 The State Basic Law is still an independent document separate from the core constitutional document of 1920, and continues to provide an important constitutional basis for the Constitutional Court’s case law.
Secondly, the constitutionalisation of the ECHR in 1964 (supplemented by the rights in the additional protocols) created the second human rights catalogue in Austria.Footnote 51 The rights of the ECHR are understood as constitutional rights, as they are formally part of Austrian constitutional law (rather than the ECHR being applied as an international treaty). In addition to these two major layers of constitutional rights, the Constitution provides few but important rights, especially the right to equality in Art. 7.Footnote 52 Moreover, Austria has signed various peace treaties such as the Treaty of St. Germain 1919 and the Treaty of Vienna 1955, which contain constitutional rights (e.g. with regard to minorities). Austria has ratified other international treaties and adopted them on a constitutional level (e.g. the International Convention on the Elimination of All Forms of Racial Discrimination)Footnote 53 or implemented them through a special constitutional act (e.g. the Convention on the Rights of the Child)Footnote 54. Finally, the EU Charter is of rising importance in the Austrian human rights system.Footnote 55 To summarise, the Austrian human rights system is very complex and focuses on liberal equality and procedural rights. A social rights catalogue is missing in the Constitution.Footnote 56 Some particular rights, however, contain a social rights dimension.Footnote 57
The application of the different human rights catalogues and provisions by the Constitutional Court follows a very particular approach of ‘reading the relevant provisions together’. Thus, the Court regularly applies all the relevant provisions from the different documents to provide a comprehensive protection of these rights.
2.1.2 There is no general constitutional provision on the limitation of rights, but certain rights include a specific limitation clause (such as in the provisions of the ECHR).Footnote 58
2.1.3 The rule of law (Rechtsstaat) and (the existence of) human rights are two basic principles of the Constitution, which can only be abolished by a popular referendum.Footnote 59 This view regarding these basic principles, which is common to the Austrian courts and the doctrine, is not explicitly mentioned in the Constitution, but is the result of the constitutional reasoning of the Constitutional Court and the interpretation of the Constitution by academic scholarship in Austria.Footnote 60
Article 18 para. 1 of the Constitution refers to the principle of legality, providing as follows: ‘[t]he entire public administration shall be based on law’. For a number of decades, this provision was understood to be the core of the Austrian (formal) understanding of the rule of law.Footnote 61 The substantive part of the rule of law is built on the legal protection of individuals through the existence of relevant institutions and procedures. The concept of legal protection against administrative action and law enforcement is (still) bound to certain forms of administrative action (Handlungsformen), which leads to an increasing lack of legal protection, because newer forms of administrative action do not necessarily fit into this relatively strict and old system of forms of administrative action (relative Geschlossenheit des Rechtsquellensystems). In particular, since the 1990s the Constitutional Court has started to actively develop its case law on the rule of law in new dimensions. The core of this new case law is linked to the principle of effective legal protection, which is directly derived from the rule of law principle. The rule of law principle includes many elements, including the rule that only published laws can be valid, and the requirement of legal certainty and of a certain level of clarity, which will be explored in Sect. 2.5. Other elements of the rule of law include non-retroactivity; the rule that the imposition of obligations, administrative charges or penalties and criminal punishments is only permissible on the basis of a parliamentary statute; and the prohibition on applying sanctions retroactively, by inferring from objectives through teleological reasoning or by analogy.
The rule of law does not constitute a constitutional right in itself; however, procedural rights and other constitutional rights can be brought forward with regard to violations of fundamental rights before the Constitutional Court.Footnote 62 An applicant can then claim a violation of the rule of law. The rule of law is an independent and – especially since the 1990s – frequent ground for annulment. Thus, a protective mechanism exists which allows for claims against rule of law violations at the Constitutional Court.
The system of constitutional review and judicial review in Austria The Constitutional Court was one of the first specialised courts with centralised constitutional review.Footnote 63 However, the Court is one out of three highest courts in the Constitution.Footnote 64 The other two are the Supreme Administrative Court and the Supreme Court of Justice. Following a subject-oriented approach, the Constitutional Court mainly reviews statutes and ordinances with regard to their constitutionality and reviews administrative acts with regard to constitutional rights, whereas the Supreme Administrative Court reviews the legality of administrative acts with regard to statutes. The Supreme Court is the highest of the ordinary courts, which deal with civil rights and obligationsFootnote 65 as well as criminal charges. The system of ordinary courts is mainly separate from the administrative authorities and administrative courts.Footnote 66 Higher courts of appeal and the Supreme Courts have the right to initiate preliminary proceedings at the Constitutional Court to review the constitutionality of a statute or an ordinance.
In contrast to the German legal system, the Constitution does not provide for a constitutional complaint against a final decision of an ordinary court or the Supreme Court. Since 2015, it is possible to file a constitutional complaint at the Constitutional Court in relation to a judgment of an ordinary court of first instance.Footnote 67 The claim, however, can only refer to the unconstitutionality of the statute on which the judgment is based, but it cannot be argued that the ordinary court judgment is unconstitutional itself.Footnote 68 The important consequence of this court system is that it is mainly up to the ordinary courts and the Supreme Court to protect the Constitution and constitutional rights. Although this protection of constitutional rights has improved over the last 20 years, several famous judgments of the ECtHR (with regard to violation of the freedom of speech according to Art. 10 ECHR) illustrate the struggles of the ordinary courts to fully guarantee constitutional rights in Austria.Footnote 69
2.2 The Balancing of Fundamental Rights and Economic Freedoms in EU Law
2.2.1 The fundamental rights in the Constitution also contain economic rights, especially the freedom to conduct a business (Erwerbsfreiheit) and the right to property (Eigentumsfreiheit). Both of these economic rights have played an important role in the case law of the Constitutional Court in the last few decades. The Court has also contributed to the liberalisation of protected professions (e.g. taxi drivers).Footnote 70 Moreover, the Court itself has had to balance these economic rights with other fundamental rights. One example was the Kleiderbauer case,Footnote 71 in which animal rights activists protested in front of a clothing store which was selling fur coats. The Court argued that the gathering of the animal rights activists was unlawful because it took place at the entrance of the store and thus made it more difficult to enter the store. The outcome of the Court’s ruling was that the freedom to conduct a business had priority in this case but that the activists were allowed to demonstrate five meters from the entrance. Thus, independently of the EU freedoms, the Constitutional Court has also considered economic freedom as significantly relevant in its case law.
The Austrian Schmidberger case at the CJEUFootnote 72 never reached the Constitutional Court, because the transportation company ‘Schmidberger’ sued the Austrian state in the ordinary courts for allowing a demonstration that blocked a major motorway in Tyrol. There is currently no legal protection against judgments of the ordinary courts in the Constitutional Court.Footnote 73 The Schmidberger case also illustrates the relevance of classic fundamental rights in Austria. The CJEU’s Data Retention case – although it is known as ‘Digital Rights Ireland’ – is also based on a preliminary reference from the Constitutional Court. Thus, the CJEU also showed that the Court is able to address fundamental rights concerns when it comes to the harmonisation of the internal market.Footnote 74
From the perspective of the Austrian constitutional culture, the integration of the four freedoms thus does not seem too difficult. On the one hand, Austria acceded to the European Union at a time when rights were already on the rise and, on the other hand, the Constitutional Court has also accepted that economic rights form an important part of fundamental rights. Moreover, Austrian constitutional culture is rooted in its legal (and thus technical) approach to the interrelation between the European and the domestic legal system. The Court was able to accept economic freedoms as an important part of the EU legal systems, which can also take precedence over Austrian constitutional law.Footnote 75
Another Austrian conflict that better shows the struggle between Austria and the EUFootnote 76 is the ‘German students’ case.Footnote 77 The CJEU decided that Austria had to open its free access to universities to all European Union citizens. The effect of that judgment was that German students who were not accepted to certain programmes of study in Germany, especially medical studies, because of their insufficient grades obtained at German high schools, applied for entrance to medical studies in Austria. The Austrian state universities were unable to offer enough places and had to restrict the number of students by introducing a preliminary exam. The result was – for many reasonsFootnote 78 – that more German students passed the exam successfully, but after finishing their studies, they went back to Germany. The Austrian Government has drafted various bills to comply with EU standards, but has ultimately introduced an increasing number of exams before the beginning of the studies, thus changing the Austrian legal system. Although there were many complaints about the CJEU’s judgment in Austria, the Austrian courts did not try to obstruct the EU decision. On the contrary, the Constitutional Court declared several other attempts to resolve the overall problems facing universities in Austria as unconstitutional.Footnote 79 This example shows that Austrian struggles with European Union law might not be the result of EU economic freedoms but rather the result of the rights of EU citizens. The case also illustrates the willingness to adapt domestic law to comply with EU law standards.
2.3 Constitutional Rights, the European Arrest Warrant and EU Criminal Law
Introductory note Defence rights are mainly based on the ECHR (e.g. on fair trial, right to judicial protection), and are considered constitutional rights.
The overall constitutional framework for judicial and constitutional review in Austria, described at the end of Sect 2.1, was crucial when it came to the introduction of the EAW in Austria. EAWs have to be applied by the ordinary courts and are reviewed by the Supreme Court.Footnote 80 As the Constitutional Court is not involved and the Supreme Court and the ordinary courts are not primarily concerned with human rights, constitutional concerns have not arisen in the same manner as they might have within the jurisdiction of the Constitutional Court.
The implementation The introduction of the EAW was accompanied by a scholarly debate on the constitutionality of the EAW, but the matter never reached the Constitutional Court nor was there an overall objection to the EAW in Austria. However, there has been an intensive academic debate among criminal lawyers during the last 10 years, which includes concerns regarding the presumption of innocence, nullum crimen, nulla poena sine lege, fair trial and in absentia judgments, practical challenges regarding a trial abroad and the right to effective judicial protection.Footnote 81
For example, regarding Art. 6 ECHR, Hinterhofer and SchallmoserFootnote 82 have criticised the Framework DecisionFootnote 83 and stated that it requires improvement regarding in absentia cases, because the defendant should receive the decision before he is transferred to the Member State that issued the EAW and should have the possibility to request a review of the judgment. Medigovic, for example, has exposed the problems of the partial relinquishment of the requirement of double criminality due to the broad and vague terminology of the list of offences.Footnote 84
The scholarly debate and scepticism towards certain topics relating to the EAW were considered in the Austrian implementation of the EAW from the very beginning. One main criticism concerned the lack of a human rights clause in the Framework Decision. A human rights clause was introduced upon implementation of the EAW in Art. 19 para. 4 of the Judicial Cooperation in Criminal Matters in the Member States of the European Union Act:Footnote 85
The execution of the arrest warrant can be refused on the following grounds: if the surrender would violate the principles of Art. 6 TEU or any objective indications exist that the warrant was issued for discriminatory purposes (e.g. regarding sex, race, religion, ethnicity, citizenship, language, political opinion or sexual orientation). The examination of these objections can remain undone when the person had the possibility to object before the competent judicial authorities in the issuing state, the ECtHR and the CJEU.
Thus, the Austrian legislator has created a real possibility to claim abuse of human rights in extradition proceedings. This legal practice not only accepts objections by the persons concerned (as indicated by the statute), but the courts also consider this clause ex officio. Moreover, the Austrian scholarship considers this clause to be in conformity with EU law.Footnote 86 This statutory starting point for the EAW gives Austrian legal practice the necessary flexibility in EAW cases. However, no specific Austrian EAW case has yet reached the CJEU, and thus the Luxemburg Court has not yet had to decide on the Austrian human rights clause.
The Constitution was involved in the introduction of a constitutional provision with regard to the extradition of Austrian citizens in the context of the execution of an EAW. The Austrian EAW implementation act includes Sect. 5, which is a constitutional provision,Footnote 87 to allow the extradition of Austrian citizens. The Austrian Parliament thus amended the Constitution to make the EAW possible. This provision, however, is mainly concerned with cases in which extradition is not possible (e.g. where the person concerned did not commit any act on the territory of the issuing state or where acts of the same type would not be subject to Austrian criminal law, thus issues regarding ‘nulla poena sine lege’). These exemptions to prohibit extraditions of Austrian citizens are formulated extensively and protect Austrian citizens broadly. As a result, up until 2013, in legal practice only one Austrian citizen who did not agree to extradition was extradited on the basis of an EAW.Footnote 88
To summarise, the Austrian Parliament has not only used the flexibility of the EAW Framework Decision to introduce a form of the EAW that is compatible with the Constitution, but has also been willing to adopt constitutional provisions to enable the integration of the Framework Decision in Austria. The changes to the Constitution, however, still guarantee the Europe-friendly implementation of the Framework Decision in Austria.
The Austrian case law The case law of the Supreme Court on the EAW is very limited and mostly technical. It does not touch upon sensitive questions related to the EAW. As mentioned above, for procedural reasons, the Constitutional Court has no involvement with the Austrian statute that implements the EAW. Politicians have also not considered the EAW as a particular threat to human rights, and none of the political actors with the possibility to seek a review by the Constitutional Court have initiated a review procedure. Some individual cases that have been covered by the media are discussed in Sect. 2.12 regarding the public debate.
There has been, however, an interesting case between Italy and Austria before the Austrian Supreme Court, which was based on traditional extradition and not on the EAW, because the EAW had not been implemented at that time.Footnote 89 The judgment was decided in 2008 and concerned an in absentia judgment of an Italian Court. The Austrian appeal court stated that there was no violation of the principle of fair trial (Art. 6 ECHR), because the person concerned left Italy after his pre-trial detention ended and he never informed the Italian authorities of his usual residence in Austria. The Supreme Court, however, recognised a violation of Art. 6 ECHR, because he had never waived his right to present an oral argument and his return to his life in Austria could not be understood as an attempt to escape. Finally, his failure to inform the Italian authorities of his residence did not release the Italian courts from the obligation to provide effective legal protection. The Supreme Court considered the Italian in absentia judgment as a violation of Art. 6 ECHR and did not agree that the requirements for an extradition had been fulfilled.Footnote 90 The Supreme Court especially referred to the case law of the ECtHR.Footnote 91 This leading case was the first (!) time that the Supreme Court had denied extradition on the basis of Art. 6 ECHR. The Austrian academic literature came to the conclusion that the same decision would have had to be made by the Supreme Court if the very same case would have been decided within the legal framework of the EAW. Section 11 of the Austrian implementation act provides similar human rights guarantees.Footnote 92 Although the EAW Framework Decision does not invoke Art. 6 ECHR in its Art. 5, the consideration of human rights is set out in recitals 12 and 13 of the Framework Decision. This case therefore shows that Austrian courts are willing to invoke human rights in extradition cases. The actual number of cases is, however, very small.
The Austrian debate on the EAW has not been a public one, but rather a scholarly one.Footnote 93 Moreover, it has primarily been a discussion within the community of criminal law scholars and has not significantly involved constitutional lawyers.Footnote 94 As already mentioned above, the Constitutional Court has not been involved because criminal charges cannot not be reviewed by the Constitutional Court, only by the Supreme Court. The rising awareness of the Supreme Court of human rights has only led to consideration of Art. 6 ECHR on one occasion in the Italian extradition case, which did not refer to the EAW. The debate of Austrian criminal law scholars, however, can be observed in the context of the increasing case law of the CJEU.
The CJEU’s case law The emergence of the CJEU case law on the EAW has had different effects on the Austrian approach towards the EAW. First of all, certain rights issues have been discussed within the Austrian community of criminal lawyers. Secondly, the Austrian legislator has amended the act implementing the Framework Decision.
A critique by Austrian scholars e.g. referring to the Melloni caseFootnote 95 is that the interpretation of the CJEU overlooks that the Charter only determines a minimum standard, which is also evident from the vagueness of the provisions. The core idea of minimum standards is, however, that in the individual case the minimum standard may be transcended. With its interpretation of Art. 53 of the Charter, the CJEU prohibits this possibility.Footnote 96 In the Radu case the CJEU neglected to elaborate more on the rights’ standards.Footnote 97 The Austrian act implementing the EAW was amended to integrate the CJEU’s case law (Kozłowski, Wolzenburg, Lopes da Silva Jorge)Footnote 98 regarding the discrimination of EU citizens by including a new Sect. 5a in the Act.Footnote 99
The CJEU’s role in EAW cases shows an ambivalent approach, which primarily strengthens the overall concept of mutual recognition and the EAW. The Lisbon Treaty gave the Court the full potential to embrace a rights-based approach. The future position of the Court will decide on further rights development in the context of the EAW. The end of the transition period for the Lisbon Treaty (2009–2014) will further impact the rising role of the CJEU as a human rights court in relation to judicial cooperation in criminal matters.Footnote 100
Enhancing the EU’s judicial cooperation While the EU tends to intensify police and judicial cooperation relatively quickly, the enactment of the complementary rights of citizens in the same policy field takes significantly more time. The establishment of a framework decision on data protection in police and judicial cooperation is one such example, and the establishment of rights of defence demonstrates the same problem. Certain developments in recent years indicate the first steps in a rights-oriented direction. The rise of defence rights in European criminal procedural law is illustrated by Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings and the Proposal for a Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest.Footnote 101, Footnote 102 A fully-fledged system of rights in transnational criminal proceedings still seems far away. Many elements have still not been properly addressed, and it remains a challenge for the domestic courts (but also legislators) to guarantee constitutional rights properly in transnational prosecution and extradition. The problem of imbalances between European prosecutorial concepts and the lack of rights of defence could get even worse with the introduction of a European Prosecution Office.Footnote 103
As regards abolition of the exequatur in civil matters, whilst one of the most important cases where the first instance court refused to forcibly send a child to live with her father in Italy was an Austrian case (both before the CJEU and the ECtHR – Povse v. Austria),Footnote 104 this is not regarded as a matter of constitutional rights or the right to access to courts in the Austrian discourse, because the Constitutional Court was not involved in this case law (which is the result of the Austrian court system as explained in Sect. 2.1). The case did, however, attract media attention.Footnote 105
Conclusion Austria presents a very particular approach towards the EAW. It is not possible to find any significant case law on constitutional rights and the EAW. The reason for this can be traced to the limited possibility of the Constitutional Court to review criminal law statutes and the lack of a constitutional complaint against judgments of the Supreme Court. The Supreme Court itself is relatively reluctant when it comes to constitutional rights and has only shown a changing approach in recent years. The main elements of the Austrian rights approach towards the EAW can be identified in the implementing legislation, which employs an extensive interpretation of the Framework Decision to broaden the human rights guarantees. In Austrian legal culture, the Constitution is also involved in the general enabling of the extradition of Austrian citizens. The particular provisions are very complex, but tend to protect Austrian citizens against extradition in most cases.
With regard to rights in a criminal law context and the EAW, Austria generally has chosen a non-constitutional approach, using the potential of the implementing legislation. Concerns, especially regarding certain case law of the CJEU, have been raised by criminal law scholars, but real conflicts regarding the possibly of different approaches by the CJEU and the Austrian implementing legislation have not yet occurred. In the meanwhile, the pro-rights approach in the context of the EAW prevails in Austria.
2.4 The EU Data Retention Directive
2.4.1 Before the EU introduced its Data Retention Directive,Footnote 106 the Austrian legal system did not have the police powers provided by the Directive. The Government waited a long time before implementing the Data Retention Directive in 2011.Footnote 107 Austria had already been punished by the CJEU for missing the implementation deadline for the directive.Footnote 108 This situation reflected the political scepticism in Austria. Finally, the bill was drafted by the Ministry of Technology in cooperation with a human rights institute to strengthen the constitutional rights elements in the Austrian implementation.Footnote 109
The state of Carinthia, as well as human rights activists, immediately initiated proceedings at the Constitutional Court as soon as the implementing act entered into force. The Constitutional Court initiated preliminary proceedings in the CJEU,Footnote 110 where the Irish caseFootnote 111 was already pending. The Constitutional Court submitted a number of questions, in particular regarding the validity of the Directive in the light of Arts. 7, 8, 11 of the Charter and regarding interpretation of the Directive in the context of the Data Protection Directive and the Charter. The Constitutional Court also referred to constitutional law (especially Art. 1 of the Data Protection Act) and extensively to Art. 8 ECHR, which is also understood to be Austrian constitutional law. The Court did not refer to its own case law on privacy; however, the Court referred to the German case law on data retention as well as to the German concept of informational self-determination and to Polish constitutional provisions. After the judgment of the CJEU in April 2014,Footnote 112 the Constitutional Court ruled in June 2014 on the (un)constitutionality of the Austrian statutory provisions implementing the EU Directive. The Court declared the relevant provisions in the Austrian Telecommunication Act, the Security Police Act and Criminal Procedural Act to be unconstitutional and thus null and void.Footnote 113
The Court came to this decision by reviewing the Austrian implementing provision primarily under Sect. 1 of the Data Protection Act, which is a constitutional provision and contains constitutional rights on data protection.Footnote 114 This particularity of Austrian constitutional law, that ordinary statutes can contain constitutional provisions and even constitutional rights, was presented in Sect. 1.1; Sect. 1 of the Data Protection Act is a significant example. The Court used the usual proportionality test to review the provisions. By also explicitly considering the reasoning of the CJEU, the Court came to the conclusion that the Austrian provisions were disproportionate. Similarly to the Data Retention Directive, the Austrian provisions did not distinguish enough with regard to the criminal offences (‘… it is not guaranteed that retained data is only then provided if it serves the criminal prosecution and resolution of the investigation which in the individual case is a serious threat to the objectives stated in Art. 8 para. 2 ECHR and which justifies such interference’).Footnote 115 The Court further reasoned/stated that ‘the “distribution range” of the unfounded storage exceeds those interferences in the legal sphere which it ever had to decide and which is protected by Sect. 1 DSG 2000. … This applies to the affected category of individuals, the scope and nature of the data as well as the purposes for which it is required and also the modalities of the use of data.’Footnote 116 The Court concluded that:
The limitations of the fundamental right of data protection according to the legal reservation in S 1 para. 2 DSG 2000 are only permissible based on laws which are necessary for the reasons mentioned in Art. 8 para. 2 ECHR and which regulate in a sufficiently precise manner that is clear to everyone, the conditions under which the investigation or use of personal data for the performance of specific administrative tasks is allowed.Footnote 117
The existing provisions, however, did not fulfil these requirements.
The Austrian police used the retained data for several purposes but not for prosecuting terrorism suspects. However, the pressure from police authorities to reintroduce these powers in the Austrian legal system is currently very high. The powers gained under the Data Retention Directive seemed to be very advantageous. The Minister of the Interior and the Minister of Justice have publicly stated on several occasions that there is a need to reintroduce these powers for police and judicial authorities.Footnote 118
2.5 Unpublished or Secret Legislation
2.5.1 The Heinrich caseFootnote 119 was an Austrian case which did not happen by chance. The Austrian understanding of the rule of law focuses particularly on the necessity of publication of legal acts. There is a specific line of case law based on Arts. 89, 139 and 140 of the Constitution, which determines the requirements for the proper publication of ordinances (by ministries or administrative authorities). A ‘proper public announcement’ has to fulfil the constitutional or statutory provisions for public announcements. If there are no particular legal rules, a typical customary announcement has to be made. If an ordinance is not published at all, the ordinance cannot be deemed valid.Footnote 120 If an ordinance is not properly published, the Constitutional Court still has the possibility to invalidate the ordinance, while other courts will not apply the ordinance (Fehlerkalkül).
The Constitutional Court has created a link between the question of public announcements and the rule of law in general in its case law.Footnote 121 It is understood as an element of the rule of law that generally binding legal acts have to be published adequately, which above all means in accordance with statutory law. This understanding of the rule of law was already part of the traditional formal understanding of the rule of law in its elaboration as the principle of legality.Footnote 122 The principle of legality serves the function of legal certainty, which was also recalled by the CJEU in the Heinrich case.Footnote 123 Thus, the initiation of a preliminary reference procedure in the Heinrich case and the formal questions regarding the principle of legality reflect a typical Austrian constitutional understanding of the rule of law. The European result, however, that the measure remained valid but not enforceable vis-à-vis individuals, is not quite the same as the Austrian constitutional approach, as the Austrian approach would have been to invalidate the act.
With regard to the Skoma-Lux case, the publication of legal acts in the right language is crucial.Footnote 124 Article 8 of the Constitution determines that German is the official language of the Austrian state. Further minority languages (e.g. Slovene and Croatian) are also accepted as official languages for these minorities. Moreover, the author has carried out scholarly research on questions of the official state language in the context of police cooperation in operative measures.Footnote 125 The TFEU provides the legal basis for operative cooperation between the police forces of different Member States. Thus, foreign police officers have police powers without even speaking any of the languages of these citizens and without knowing the legal provisions (at least not the legal details) which they have to apply. Thus, there is a general problem regarding language in the operative cooperation of police forces in the EU.
Another interesting element of the Austrian principle of legality refers to a certain level of clarity which a statute has to provide. The Constitutional Court has developed case law regarding too complicated or too complex forms of legislation. The Court has stated that it is not the task of the citizens to show a level of diligence normally demonstrated by keepers of archives (‘archivarischer Fleiß’) to understand the content of statutory legislation.Footnote 126 Moreover, the Court has emphasised that it is not necessary for statutory interpretation to incite the desire to solve brain teasers or word puzzles (‘Lust zum Lösen von Denksportaufgaben’).Footnote 127 Again, the Court has established limits to legislation, which – although published – is not comprehensible to individuals.
2.6 Rights and General Principles of Law in the Context of Market Regulation: Property Rights, Legal Certainty, Non-retroactivity and Proportionality
2.6.1 After the accession to the EU, the Constitutional Court declared in its early case law that the Court would not review domestic statutes on the basis of European legislation.Footnote 128 It would be the responsibility of the Supreme Administrative Court to review administrative decisions with regard to European regulations and directives. The Constitutional Court accepted the direct effect and supremacy of EU law even in relation to constitutional law. In the Telekom Control case, the Court clearly accepted that EU law takes precedence over constitutional provisions (which were related to the concept of administration in Austria and thus contributed to the rule of law).Footnote 129 Other cases in the context of energy regulation, for example, were already constitutionally considered by Parliament through the enactment of new constitutional legislation in Austria.
The Court has not been confronted with any cases involving European market regulations limiting property rights, legal certainty, etc.Footnote 130 On the contrary, European market regulations have usually broadened the rights of individuals as well as business corporations against the state. Thus, while limiting the power of the state, the rights of individuals have been strengthened by European legislation.
In state aid cases, it might be possible to argue that the Constitutional Court, according to its own case law, would in certain cases have provided a higher standard of legitimate expectations.Footnote 131 Due to the European concept of limitation of state aid, however, the European Commission is more restrictive in these cases.Footnote 132
It can therefore be said that the Constitutional Court is willing to adapt Austrian constitutional provisions to European legislation and the CJEU’s case law, especially in the context of the rule of law. With regard to constitutional rights, the Court follows a hierarchical approach and uses the preliminary reference procedure to refer to the CJEU to declare European legislation void.
2.7 The ESM Treaty, Austerity Programmes and the Democratic, Rule-of-Law-Based State
2.7.1 The implementation of the ESM Treaty in the Austrian legal system consisted of two stages. The Parliament first authorised the international treatyFootnote 133 and subsequently included new provisions (Art. 50a–d) regarding the role of Parliament within the ESM in the Constitution.Footnote 134 Parliament has to authorise the voting of the Austrian Government with regard to any ‘proposal for a resolution to grant stability aid to a member state in principle’; ‘an alteration of the approved share capital and an adaptation of the maximum loan volume of the European Stability Mechanism as well as the calling of approved share capital not having been paid in’ and ‘amendments of the financial aid instruments’.Footnote 135 Moreover, the competent minister has to inform Parliament about recent developments. Parliament has – similarly as in the case of EU policy mattersFootnote 136 – the power to bind the minister by a parliamentary opinion. Furthermore, the Constitution authorises Parliament to establish further competences of Parliament by an ordinary statute. Parliament was therefore included significantly in the decision-making of the Government upon implementation.
Besides this constitutional integration and the democratic considerations, the Constitutional Court has had to decide on a constitutional complaint against the ESM Treaty.Footnote 137 The complaint was filed in an abstract review procedure by the Carinthian state government and addressed manifold concerns regarding the ESM Treaty, including the unconstitutional adoption of the interpretative declaration on the ESM, the undue transfer of various sovereign powers and the lack of reasonability of the ESM.Footnote 138 In an unusually long judgment, the Constitutional Court dismissed all arguments which were raised. According to Art. 9 para. 2 of the Constitution, the Republic of Austria is authorised to transfer individual governmental powers to international institutions. This provision had already traditionally been interpreted broadly. The Constitutional Court in its ESM judgment, however, broadened its already international-friendly approach even further. The Court based its decision on the CJEU’s Pringle,Footnote 139 case and referred to the German Constitutional Court’s judgment.Footnote 140 The Court declared that the ESM does not contradict the constitutional principle of an ‘overall economic balance and sustainable balanced budget’ nor the principle of reasonability nor the principles of economy, efficiency and expediency. The maximum amount allowed under the ESM for Austria would be about 27% of the Austrian annual state budget and 5% of the annual GDP. The Constitutional Court stated that these economic decisions still fall within the political leeway that must not be restricted by the Court.
2.7.2 With regard to further financial matters it is – by Austrian standards – remarkable that it was not possible to find a constitutional amending majority in Parliament for the constitutionalisation of the golden rule (debt brake, Schuldenbremse), which was then only implemented on a statutory level.Footnote 141 Other political reasons (opposition parties tried to get further parliamentary minority rights) were behind this. However, the Austrian federation (Bund), the states (Länder) and the municipalities concluded an inter-state agreement with regard to financial stability within the Republic of Austria.Footnote 142
Moreover, the Constitutional Court has had to decide on the European fiscal compact.Footnote 143 The Constitutional Court defended – with a similar approach as in the ESM case – the fiscal compact. The Court (especially in relation to the complaints) justified the involvement of European institutions in general and the powers transferred to them from a domestic level on the basis of Art. 9 para. 2 of the Constitution. Moreover, the Court stated that the establishment of a balanced budget is the task of an ordinary majority of Parliament (and thus no constitution-amending majority is needed).
On the whole, Austrian legislation and the Constitutional Court seem to be open to European fiscal cooperation. However, it is important to mention the domestic challenges relating to bail-outs and hair-cuts. The Carinthian bank, Hypo Alpe Adria, which is completely bankrupt (heavily influenced by Jörg Haider’s politics and systems of corruption), created a major threat to the economic situation in Austria and the state budget. Heavy financial losses have had a significant impact on the Austrian state budget, have increased national debt significantly and have demonstrated that in the Austrian Federal System economic challenges need further legal frameworks, stronger accountability and effective control. The Constitutional Court has declared certain forms of hair-cuts to be unconstitutional.Footnote 144 The Court argued that the Hypo Reorganization Act, in an unconstitutional manner, distinguishes between ‘normal’ creditors and ‘junior creditors’, whose position in the event of insolvency is junior, and ‘further differentiates within the group of junior creditors merely on the basis of the cut-off date (set at 30 June 2019). Exposures of junior creditors falling due before this date are deemed to be expired; claims falling due after that date remain unaffected. Such procedure, i.e. the application of an unequal treatment regime within the group of junior creditors depending on the cut-off date, is unconstitutional. This constitutes a violation of the fundamental right to the protection of property.Footnote 145
2.7.3 Austria has not been subject to a bailout or austerity programme.
2.8 Judicial Review of EU Measures: Access to Justice and the Standard of Review
2.8.1 Since the accession of Austria to the EU in 1995, Austrian courts have referred to the CJEU in more than 200 cases overall. Since 2001, Austrian institutions have requested a preliminary ruling from the CJEU in seven cases with regard to the validity of EU legislation; thus, only a very small number have related to questions of validity. A closer look at these seven cases shows a highly diverse approach by the CJEU.
The most prominent preliminary reference is Seitlinger and others with regard to the Data Retention Directive, as discussed in Sect. 2.4. Another case regarding the Data Retention Directive submitted by the Austrian Data Protection Commission was not considered because the case submitted by the Constitutional Court was already pending.Footnote 146 As is widely known, the CJEU declared that the Data Retention Directive contradicts the Charter and is thus void.
In case C-309/10, the referring Administrative Court challenged the temporary scheme for the restructuring of the sugar industry in the European Community, as well as with regard to the principle of conferral of powers. The CJEU did not only review the EU principle of conferral of powers but also many other principles, including the ‘obligation to state reasons’ and the principle of proportionality. The CJEU, however, concluded that its review had not ‘revealed anything which might affect the validity of Art. 11 of Regulation No 320/2006’.Footnote 147
Regarding some of the other cases, the CJEU stated in its judgment in case C-439/01 that the relevant provisions (Art. 8 of Regulation No 3820/85 on the harmonisation of certain social legislation relating to road transport)Footnote 148 do not contradict the principle of legal certainty.Footnote 149 In CJEU case C-216/03, the Court declared the preliminary reference to be inadmissible.Footnote 150
In CJEU case C-329/13 (Stefan), the Austrian State Independent Administrative Authority questioned the validity of a provision of Directive 2003/4/EC, which granted an exception to the obligation to disclose environmental information where the disclosure compromises the right of any person to receive a fair trial with regard to Art. 47 para. 2 of the Charter. The CJEU could not find any violation of the right to fair trial. Finally, another preliminary reference at the CJEU in the context of environmental law concerned Commission Decision 2013/448/EU and questioned whether this decision is invalid because of an infringement of Directive 2003/87/EC.Footnote 151
From the very beginning, the Constitutional Court has been willing to initiate preliminary reference proceedings at the CJEU. The Constitutional Court has not used these proceedings very often (four times), but it seems that they have always been a viable possibility for the Court. With regard to constitutional rights, the Constitutional Court has changed its approach since the enactment of the Lisbon Treaty. The Constitutional Court has used the EU Charter as the standard of its review since 2012 with the following effect: if Austrian statutes contradict domestic or European fundamental rights, the Court will declare them void and unconstitutional. Moreover, if European legislation contradicts European fundamental rights, the Court will file a preliminary reference with the CJEU for the European Court to determine whether the European legislation is invalid. The Court applied this approach with regard to the Data Retention Directive.Footnote 152 The Schmidberger case also exemplified that ordinary courts in Austria follow this approach.Footnote 153
In summary it can be said that the Austrian cases in the context of preliminary rulings regarding validity are very limited. Other than in the Data Retention case, the CJEU has not found any problems with validity. If one excludes the cases which are still pending and those which have been rejected, only four cases remain. In one of the four cases the CJEU accepted the concerns (25%). The overall number is, however, too small to base any specific argument on the outcomes.
2.8.2–2.8.3 The system of constitutional review in Austria is outlined in Sect. 2.1. According to the 2014 annual report of the Constitutional Court, in 41 cases of statutory review (out of 198) the Court declared a provision to be at least partly unconstitutional and void. In 102 cases the court declared the review to be inadmissible.Footnote 154 Thus, in 20% of all cases and 50% of admissible cases the Court declared a statutory provision to be void. Clearly the greatest challenge for a complainant is the acceptance of the case by the Court.
The Constitutional Court traditionally does not review EU legislation. It is up to the Supreme Administrative Court and the Supreme Court of Justice to review the implementation of EU legislation in the final instance. In 2012, however, the Constitutional Court introduced an exemption that concerns the Charter.Footnote 155 The Constitutional Court also uses the Charter to review administrative decisions within the scope of EU law.
If one compares the general standard of review between the Constitutional Court and the CJEU it is possible to argue that the domestic constitutional court has developed higher standards in different areas: the Constitutional Court has, based on the Constitution, a very distinctive and restrictive concept of the principle of legality.Footnote 156 The Constitutional Court has developed a principle of reasonability, which enables the Court to control every act of legislation regarding its reasonability.Footnote 157 Finally, the influence of the ECtHR has led to a detailed review of the principle of proportionality.Footnote 158
The comparison of these two courts, however, has to be put into perspective, as the CJEU and the Constitutional Court fulfil different functions and both courts work together in the European network of (constitutional/supreme) courts. First, the CJEU has to guarantee general principles in 28 different jurisdictions, which makes it necessary not to exercise review in an overly detailed manner, since this would make it difficult for jurisdictions to consider these principles properly. Secondly, the CJEU is not the only court to review EU principles and human rights, but rather builds on the cooperation of courts in Europe. Thus, it makes sense that the CJEU does not have the same intensity of review of general principles or human rights as domestic constitutional courts.
2.8.4 The Bosphorus case lawFootnote 159 shifted the human rights responsibilities from the ECtHR to the CJEU, which has intensified its human rights approach accordingly in the last 10 years. The Data Retention judgment was the climax of these developments. The Lisbon Treaty even raised the protection of human rights within the Union to a new level; the accession of the EU to the ECHR should have been the next step in these developments. The opinion of the CJEU can be regarded as a backlash against these attempts to create a complex but coherent system of human rights protection.Footnote 160 This also means that it would be necessary to revisit the Bosphorus case law, should the CJEU fail to guarantee human rights protection. The CJEU’s approach, however, can be understood in coherence with its claims of autonomy, which were already stated in the Kadi judgment.Footnote 161 The CJEU’s approach could lead to a new balance in the European network of human rights protection if the ECtHR were to again intensify its own review of EU legislation.
2.9 Other Constitutional Rights and Principles
The rule of law as a domestic concept European administrative law fundamentally challenges the Austrian system of legal protection in administrative law. The Austrian system is based on certain forms of administrative acts and action (e.g. ordinance, decision, law enforcement).Footnote 162 Depending on the type of administrative act, different types of legal protection are available. The problem that arises in the Austrian system in relation to EU administrative law is that new forms of administrative acts have been introduced which do not fit in with the system of Austrian administrative law and thus lack the necessary legal protection. The result is that the Austrian Parliament and Government have sought to transform European concepts into Austrian administrative forms – attempts which have not always been entirely successful.
Two examples of this are air quality assessments and air quality management in environmental law.Footnote 163 Rights for individuals and legal protection against omissions by administrative authorities must be provided to enact these plans. Such plan would usually take the form of an ordinance in Austria, but the legal protection available against ordinances is quite limited in Austria and only directly possible at the Constitutional Court. Legal action against administrative authorities who fail to enact a plan is not directly possible. Moreover, the Austrian legal system provides a relatively narrow definition of ‘parties’ in administrative proceedings. In contrast to the French model, which inspired the EU legislation, the Austrian system cannot provide the right for everybody to participate in administrative proceedings. The necessary changes to Austrian administrative law are not that easy to bring about because all of these questions are deeply rooted in constitutional law and it would be necessary to develop a completely different concept of the rule of law. The result is that currently the Austrian constitutional system cannot provide effective legal protection in all cases.Footnote 164
The introduction of administrative courts of first instance in 2014, however, shows that the Constitution and the rule of law have been changed significantly to create a constitutional framework that better fits EU administrative law.
The rule of law as a European value The European Union has developed its own concept of the rule of law over the last 60 years. The Maastricht Treaty identified the rule of law and human rights as two of the core values of European constitutionalism, which have to be fulfilled by countries applying to join the EU, as well as by the existing Member States of the Union. The case of the ‘EU 14 sanctions against Austria’ in the year 2000 and the Hungarian case showed the increasing aspiration of the Union to strengthen the rule of law in the Member States’ constitutions.Footnote 165 Although the Union’s approach struggles between strong legal powers (Art. 7 TEU) and too weak political debates as well as too detailed infringement proceedings, the EU institutions are intensifying their efforts to protect the rule of law and human rights as part of European constitutionalism.Footnote 166
2.10 Common Constitutional Traditions
2.10.1 The search for common constitutional traditions seems to follow a harmonising and universalising approach. From the author’s perspective, two levels of common constitutional traditions can be distinguished: first, a general level of basic principles and rights, and secondly, a deeper understanding of the very same principles and rights, which focuses on the particular constitutional cultures.
The first and general level of a basic collection of principles and rights seem to be found easily. The core constitutional values of democracy, the rule of law and human rights are common to the EU Member States. It is even possible to elaborate these three values in more detail and to find certain principles and rights which can be understood as common constitutional traditions. With regard to democracy, the parliamentary concept of representation shares certain elements of democratic accountability or public debate, as well as the party system in general. With regard to the rule of law, the independence of the judiciary, the principle of legality and access to justice are relevant. Finally, the ECHR creates a common foundation of European human rights. Common constitutional traditions can thus be identified and built upon, which leads to a harmonising and universalising approach.
On a second, deeper level of constitutional principles and rights, nothing seems to be the same. Each country has shaped its own constitutional approach by historical experiences, political decision-making or constitutional culture. The countries can be distinguished as federalised or centralised systems, presidential or parliamentary democracies, by the role of direct democracy, social rights or by civil or common law traditions. Particular rights are interpreted completely differently in the case law of the courts. Finally, the details of constitutional culture are shaped by history, language, politics and legal culture in general. While on a general level a common constitutional tradition seems obvious, it is more than doubtful that on a deeper level common constitutional traditions exist at all.
2.10.2 If one tries to address the question of common constitutional traditions, it is the author’s view that it is necessary to see the incommensurability of attempting to unify all traditions in one common constitutional tradition. Thus, it cannot be the task of the CJEU to create a proper unification of all traditions, but it was and is necessary that the European courts develop their own approach to addressing constitutional principles.Footnote 167 Beyond the surface of common constitutional traditions it is necessary to see the plurality of constitutional cultures. The solution that seems preferable to the author is to engage more intensely in a dialogue from a pluralistic perspective with these different constitutional traditions. It is not possible to unify them, but it is possible to actively approach and confront them with the European approach, which has to be different (at least from some constitutional cultures).
The author stresses the still unexploited potential of comparative research in practice and in academia to strengthen the dialogue on constitutional traditions in Europe. The potential for comparative research in e.g. the courts’ practice does not, however, only refer to the European Courts, which could informally as well as formally engage more in the comparative project. This comparative approach is primarily addressed to the domestic courts, to raise awareness of the different constitutional cultures in the other Member States. It is not only a ‘hierarchical’ dialogue between the European and the domestic levels, but a cooperative dialogue between the domestic courts on a transnational level. The transnational dialogue can also currently be ‘hierarchical’, as certain courts, like the German Constitutional Court, (pro)claim a certain order of priority in constitutional reasoning when it comes to the EU/Member State interrelation of constitutional principles. This practical comparison, however, would need strong academic support to provide the relevant constitutional knowledge for the courts.Footnote 168 Finally it seems necessary that the courts not only engage in this dialogue but also reveal their approach towards legal comparison, their comparative methodology and the practical outcome of the comparison.Footnote 169
2.11 Article 53 of the Charter and the Issue of Stricter Constitutional Standards
2.11.1 Article 53 of the Charter has to be understood in its broader context as part of a very complex legal coordination of different human rights standards in Europe. The Charter, the ECHR and domestic constitutional rights systems compete legally to provide effective human rights protection. This legal complexity is created by the mutual interdependence of the different legal orders: the ECHR binds the domestic legal systems internationally and the EU is also bound by the Convention by its own reference in Art. 52 of the Charter. EU law in general binds the legal systems of the Member States by direct effect and supremacy supranationally. The human rights dilemma arises because the systems (EU, ECHR, domestic constitutions) do not provide the exact same constitutional rights, but vary significantly. On the one hand, the Solange approach – developed by the German Constitutional Court – gives EU law supremacy in human rights protection and was strengthened by the Bosphorus decision of the ECtHR. On the other hand, Art. 53 of the Charter and Art. 53 ECHR return the competence to advance human rights protection to the Member States. Within the scope of EU law, however, higher domestic constitutional protection might be in contradiction with the supremacy of EU law and the CJEU’s function to ‘ensure that in the interpretation and application of the Treaties the law is observed’ (Art 19 TEU). The possibility to apply stricter human rights standards would create a different kind of EU law.Footnote 170 The increasing judicial conflicts between the European courts (CJEU, ECtHR)Footnote 171 and domestic constitutional/supreme courtsFootnote 172 will increase the complexity and plurality of the whole human rights network.
An interesting element of this interrelation might be provided by the Constitutional Court’s approach towards human rights. Austria is an interesting test case because it has worked with different national and international human rights catalogues for the last 50 years. The fragmented structure of Austrian constitutional rightsFootnote 173 made it necessary for the Constitutional Court to create its own concept of constitutional reasoning regarding fundamental rights. The Constitutional Court ‘reads the different texts together’Footnote 174 and creates a mixture of all the textual layers of fundamental and human rights. In particular, the Constitutional Court has had to apply the ECHR as Austrian constitutional law. Certain judicial divergences exist (e.g. with regard to the scope of Art. 6 ECHR) between the Constitutional Court and the ECtHR, but nowadays the Constitutional Court mainly follows the case law of the ECtHR.Footnote 175 Finally, the Constitutional Court – as mentioned above – has applied the EU Charter as the standard of its review since 2012. The Constitutional Court thus involves domestic and European (ECHR as well as Charter) human rights catalogues in its case law. The strategy of the Court does not follow a formal application of Art. 53 Charter or Art. 53 ECHR, but a more sophisticated interpretation of all different human rights catalogues, which takes each particular case into account. In its prominent judgment relating to the Charter, the Constitutional Court tried to combine Art. 6 ECHR case law and Art. 47 of the Charter.Footnote 176 Although the author is sceptical whether the interpretation in this concrete case is convincing, the inter-textual approach seems promising.
Thus, while Art. 53 of the Charter does not provide the solution to the complex interdependence of the different human rights catalogues, it might be useful in sensitive cases to consider the possibility of integrating Art. 53 of the Charter in the constitutional reasoning of domestic supreme and constitutional courts.
2.12 Democratic Debate on Constitutional Rights and Values
2.12.1–2.12.3 In Austria no democratic debate on the EAW Framework Decision or on the EU Data Retention Directive took place at the time of adoption of these European acts. In the case of the Data Retention Directive, public information was released by the media,Footnote 177 and the EAW was even introduced on a European level without any significant public knowledge at the Austrian level. The implementation of the EAW and the following discussion in Austria show that the Austrian media did not perceive the EAW as a particular threat to the Austrian legal system or to the people living in Austria.Footnote 178
Two cases shall be mentioned to illustrate the Austrian approach. The first is the Elsner case. Mr. Elsner is an Austrian banker who was sentenced for embezzlement and fraud in a huge bank scandal (BAWAG affair).Footnote 179 In the context of his prosecution, Austria issued an EAW against Mr. Elsner, who resided in France, because of an increased risk of escape.Footnote 180 The EAW was received as a positive opportunity for Austria to prosecute potentially corrupt Austrian bankers abroad. It showed the effectiveness of European judicial cooperation in criminal matters. The second is the Haderer case. Mr. Haderer is an Austrian cartoonist, who created a Jesus comic in which Jesus was basically portrayed as a junkie who smoked marijuana all the time. Mr. Haderer was sentenced by a Greek Court in absentia for the violation of religious feelings. Although the EAW was not relevant in the Haderer case because the violation of religious feelings does not fall within the scope of the EAW and the judgment was revised by the court of appeal, the case showed the tensions between human rights (freedom of speech) and transnational extradition in a European context, which was critically reported by the Austrian media.Footnote 181
While the EAW was neither really discussed in Austria nor led to any negative reaction on the part of the Austrian media or public, there was a huge debate surrounding the implementation of the EU Data Retention Directive.Footnote 182 The media and civil society were critical of the implementation of the Data Retention Directive in Austria. Constitutional lawyers openly expressed their concerns.Footnote 183 Moreover, Austrian politicians were reluctant to implement the directive. Only when Austria was threatened with a penalty for non-implementation of the directiveFootnote 184 did Austria finally implement the directive. Austrian civil society groups immediately filed an action against the implementation, and the Constitutional Court initiated preliminary proceedings. Thus, Austrian society and the state did everything possible to escape this unconstitutional situation and finally succeeded. The damage, however, was already done. The taboo was broken and since then, Austrian police authorities have increased political pressure for re-implementation.Footnote 185
The Austrian example shows that the domestic debates started very late: at the time of implementation or even later when the effects of the implementation became obvious. The EU Data Retention Directive, however, also illustrates that the implementation of an apparently unconstitutional EU legislative act will cause damage when it is implemented and effective (even if it is in force only for some years). Sufficient consideration of these concerns in the European legislative processes might provide an interesting step forward towards a truly European constitutional network.
First and foremost, there is a lack of domestic public debate taking place before new EU legislation is adopted on a European level. The integration of the national parliaments in the EU legislative process with regard to the subsidiarity principle is already an interesting step in the right direction. The European Parliament seems to be the place where these concerns should be relevant. I think that nowadays it would be possible for the concerns of domestic constitutional courts with regard to domestic constitutional issues to be raised in advance of the debates in the European Parliament. I do not think that further formal procedures are necessary at this stage. On the contrary, an over-formalised political process would create too many obstacles to enacting legislation on a European level at all.
When it comes to the implementation of EU legislation in the Member States, it seems an interesting idea to give constitutional or supreme courts (at least a certain number of courts) the possibility to raise their concerns in an infringement procedure with regard to the validity (constitutionality) of an EU act of legislation. Such a procedure, however, could not refer to the domestic constitution, but would have to be based on concerns regarding the EU Treaties, especially the Charter.
2.13 Conclusion: Analysis on the Protection of Constitutional Rights in EU Law
2.13.1 The interrelation between the protection of constitutional rights and EU law can be characterised as complex and ambiguous. At least three different effects of EU law on domestic constitutional rights can be distinguished: first, the strengthening of constitutional rights through EU law, secondly the changing (and maybe challenging) of constitutional rights and thirdly, the weakening of constitutional rights. These three developments shall be exemplified from an Austrian perspective.
Strengthening human rights through EU law The strengthening of human rights through EU law in Austria can be related to many different legal sources, including EU secondary law, CJEU case law (especially regarding the general principles of the Union) and, finally, the Charter. After 20 years of EU membership, it is definitely possible to conclude that the EU has contributed significantly to the extension and increase of human rights in Austria.
EU secondary law was mentioned first for a reason. Although it is ordinary legislation of the Union, equipped with direct effect and supremacy, it has at least the same legal force as domestic constitutional rights. EU regulations and directives contain significant rights and thus change the rights of individuals significantly. There are many examples, but the most significant ones might be the anti-discrimination directivesFootnote 186 and the General Data Protection Regulation.Footnote 187
As for CJEU case law, the general principles of the Union have also shaped the Austrian possibilities with regard to constitutional rights.Footnote 188 The right to effective judicial protection is the most prominent example, which changed the Constitutional Court’s approach to grant (significantly more) judicial protection than was offered under the Constitution.Footnote 189 The EU concept of state liability, as another example, has also broadened the opportunities for legal protection in Austria.
Finally, the EU Charter will significantly widen the scope of rights which are protected by the Constitutional Court. With its important decision on the EU Charter in 2012, the Constitutional Court declared that the Charter will be the standard of review by the Constitutional Court in the scope of application of EU law. The consequence will be that completely new rights (like human dignity and the right to good administration) will be introduced in the Austrian constitutional system.
In conclusion, EU law has had many positive effects on domestic constitutional rights in Austria.
Changing human rights through EU Law The Austrian system of legal protection is primarily based on certain forms of administrative procedures and actions. The EU has introduced many new concepts in Austrian administrative law (e.g. in the context of emissions certificates and environmental protection), which do not fit in with the Austrian system.Footnote 190 The consequences, at least in certain fields, are structural constitutional problems which lead to a lack of judicial protection and, thus, challenge human rights protection in Austria. It will be up to further constitutional changes in Austria to adapt to these challenges.
Weakening human rights through EU Law The examples of the EAW and data retention illustrate that the transnational dimension of EU law creates deeper challenges to domestic constitutional systems and their protection of constitutional rights. Certain well-established constitutional concepts like the non-extradition of a Member-State’s own citizens have to be changed to be in line with the European concept of judicial cooperation in criminal matters. Moreover, the Union seems to be developing cooperation that impacts on constitutional rights faster than the necessary complementary rights protection regimes, especially with regard to transnational procedural rights. These effects can only be addressed by a robust rights regime, which has to be enacted on a European level. The proposed directive on data protection regarding police and judicial cooperation in criminal mattersFootnote 191 serves as an example of adopting rights standards at the same time; however, the substantive value of the rights guarantees involved seems questionable.
From an overall perspective, it is possible to conclude that with regard to the Austrian legal system, EU law has had and continues to have positive and challenging effects on constitutional rights. The Austrian approach towards European human rights illustrates an active participation in the European constitutional network and the adaptation to European standards in constitutional law, including a broadening of Austria’s own constitutional rights approach. Even such a domestic approach towards EU law, however, cannot absolve the Union of its responsibility to foster its own human rights regime, especially when it comes to challenges which clearly arise from the particular transnational nature of EU law.
The European approach towards human rights might be characterised as integration dynamics between rights’ activism and rights’ restraints. The constitutionalisation of the Union was significantly increased by the enactment of the EU’s own Charter of Fundamental Rights, which subsequently became legally binding under the Lisbon Treaty. The integration of human rights by the CJEU is a process that has evolved over decades, which was given a further impetus by the Lisbon Treaty.Footnote 192 However, the EU also has to ensure that it develops its own human rights approach, as this approach affects the remaining competences of the Member States.Footnote 193 Thus, the strengthening of human rights has to be understood as a step in the right direction and the next dimension of European integration. This development of European integration will create even stronger ties between the EU and the Member States within a European constitutional network.